[U] Commonwealth v. Harris

Appeal from the PCRA Order December 21, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0902292-1996

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OTT, JJ.

MEMORANDUM

BOWES, J.

Kendall Harris appeals from the order denying his serial PCRA petition as untimely. We affirm.

A prior panel of this Court delineated the factual and procedural background of this matter as follows.

Appellant was in the passenger seat of a Buick Skyhawk driven by co-defendant Abdul King; Ricardo Fontaine and James Oliver were in the back seat. A witness, Larry Pringle, testified that he was playing sports at a playground when he observed the Buick circle the block twice and eventually come to a stop in front of a Chinese store. When Mr. Pringle approached the Buick, Appellant reached across the driver and pointed a revolver out the driver's side window. As Mr. Pringle ran away, he heard five gun shots. After the Buick drove away, Mr. Pringle returned to the scene and discovered that Aidell Corbett had been shot in the chest and James Nixon had been shot in the leg. Mr. Corbett subsequently died as a result of the gunshot wound to his chest.

Following a jury trial, Appellant was convicted of first degree murder, aggravated assault, criminal conspiracy, and possessing an instrument of crime. After the jury deadlocked on the penalty verdict, the trial court imposed a life sentence for the murder conviction. The trial court also ordered Appellant to serve a consecutive term of 2½ to 5 years' imprisonment for aggravated assault, with a concurrent aggregate term of 5 to 10 years' imprisonment on the remaining charges. Appellant's trial counsel was permitted to withdraw, and Appellant's newly-appointed counsel filed a direct appeal to this Court. Another panel of this Court affirmed Appellant's judgment of sentence and the Pennsylvania Supreme Court denied allocatur.

Appellant again sought PCRA relief on September 8, 2006. The PCRA court dismissed that petition as untimely on November 18, 2008. Appellant did not appeal. However, on February 16, 2012, Appellant, with the aid of privately-retained counsel, filed the underlying PCRA petition herein. Therein, Appellant contended that his petition was timely based on newly-discovered facts. He attached an affidavit from victim Nixon, in which Nixon averred that Appellant was not the shooter. In the affidavit, Nixon also set forth that a person identifying himself as Appellant's attorney interviewed him and Nixon informed that individual that Appellant was not in the vehicle when the shots were fired. In addition, Appellant provided an affidavit from his co-defendant, Abdul King. King indicated that Appellant was not with him at the time of the shooting. Appellant also attached to a supplemental petition an affidavit from Dwayne Baker, who claimed that Appellant was with him at the time of the shooting.

The Commonwealth responded by conflating a timeliness analysis under the newly-discovered fact exception with merits review of an after-discovered evidence claim. See Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005). It contended that because Appellant could not establish that the alleged new evidence would entitle him to relief, his petition was untimely. The PCRA court issued a Pa.R.Crim.P. 907 notice of dismissal on November 27, 2012, finding Appellant's petition untimely. Appellant responded on December 14, 2012, and the court issued its final order on December 21, 2012. Despite being represented by counsel, Appellant filed a pro se notice of appeal. Counsel, nonetheless, indicated to the PCRA court that she continued to represent Appellant. Accordingly, the PCRA court directed counsel to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Counsel complied, and the court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ready for this Court's consideration. Appellant presents the following issues for our review.

I. Whether the court of common pleas erred when it denied the PCRA petition without first conducting an evidentiary hearing to learn the facts?

II. Whether the court of common pleas erred when it assumed, without a hearing, that the petitioner was not entitled to the ...

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